Sex Crimes Attorney in Los Angeles, California

Child Pornography: What possible defenses might be raised in a child pornography case?

Los Angeles, CA criminal defense attorney Karen L. Goldstein talks about the possible defenses that might be raised in a child pornography case.

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So one of my specialties within the realm of sex crimes is child pornography. It’s probably the number one charge I see, both in state and federal court. The thing is, in federal court when you’re dealing with this, you can have mandatory minimum prison sentences, and so the stakes are incredibly high. But even in state court, we’re talking about mandatory sex registration for life for potentially just possessing images that were underage. I’ve done hundreds of child pornography cases. I’ve also published articles about how unfair the guidelines – what used to be mandatory federal sentencing guidelines are in this area.

Now, I would say the good news, if there is such a thing in this area, is there are defenses that can work. It’s not every case, but I would say they’re sort of two pretty common defenses you look for to try to fight these charges, and the first would be did your client actually click on an image knowingly? There can be mislabeling of these images, and everybody knows. Pornography’s legal. Adults engaging in pornography is completely legal. Where it gets murky and where people get into trouble is if it’s unclear if the person’s over 18. And so sometimes you click on something, and you can get thousands of images with that click, and it’s labeled one way, but what pops up on your screen is something different, but you may have just committed a crime. And so making sure you go back over the computer forensics as much as it can be sensitive and difficult and not pleasant, you gotta do it if you’re gonna practice in this area, and you need to do it with a computer forensic expert.

Then the second thing you wanna look for in terms of defending these kind of cases would be a technical defense. There can be a way that somebody hacked into the system, what they call a Trojan horse. That’s not as common. We’re usually more trying to look at the image and say, “Did they know what they were clicking on? Did they download it?” And then the third area where you’re looking for maybe a defense is you’re looking at the image and you just can’t tell if it’s actually illegal, and if you can’t tell, chances are law enforcement can’t tell either, and you may very well want to be arguing this is probably legal adult pornography.

And so everyone’s very uncomfortable talking about these topics, but the fact of the matter is our laws punish child pornography so harshly, so even if you get out of prison time, we’re talking a felony in state court and sex registration for life. And I’ve had clients that were 18 years old and that were looking at images of people 15 years old. That is still a crime, although I don’t think most people would agree that person should go away to prison for the rest of their life or even face registration. When you hear that phrase, there’s a lot of stigma – child pornography. Nobody is pro-child pornography. But you gotta make sure that the penalty fits the crime, and in this area, the legislature and judges and prosecutors are hysterical, and so it’s very difficult to get just outcomes in that area.

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